Joint Anti-Fascist Refugee Committee v. McGrath

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1951 United States Supreme Court case

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**Joint Anti-Fascist Refugee Committee v. McGrath **

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), was a United States Supreme Court case that held that groups could sue to challenge their inclusion on the Attorney General's List of Subversive Organizations . The decision was fractured on its reasoning, with each of the Justices in the majority writing separate opinions.

Background

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The Joint Anti-Fascist Refugee Committee was formed by Lincoln Battalion veterans of the Spanish Civil War to provide aid to the Spanish Loyalists who were refugees from Francoist Spain . In 1942, it was licensed to do so in Vichy France by President Franklin D. Roosevelt 's wartime administration and was then granted tax-exempt status. : 70  Dorothy Parker took charge of fundraising for the committee, which soon attracted the support of Leonard Bernstein , Albert Einstein , Lillian Hellman , Langston Hughes , and Orson Welles .

In 1946, Dr. Edward K. Barsky and the rest of the leadership of the committee were held in contempt of Congress after they on principle refused to comply with subpoenas from the House Un-American Activities Committee . : 70  On March 21, 1947, President Harry S. Truman issued Executive Order 9835 , which led Attorney General Tom C. Clark to publish the Attorney General's List of Subversive Organizations . : 68  The list sought the public identification groups the Attorney General considered to be "totalitarian, Fascist, Communist, or subversive." : 68  The committee were included on the list. : 70  Under Section 9A of the Hatch Act of 1939 , that information was disseminated among the agencies of the US government.

In 1948, the Anti-Fascists sued in the United States District Court for the District of Columbia by alleging that they were exclusively a relief organization, the listing had deprived them of their rights under the Due Process Clause and the First Amendment , and they had been injured by their loss of tax-exempt status and the damage to their reputation. : 72  The Justice Department responded in a two-sentence motion, which said the lawsuit failed to state a claim. : 72  In June 1948, the district court dismissed the Anti-Fascists' lawsuit without an opinion. : 72 

In February and April 1949, US District Judges Jennings Bailey and Matthew Francis McGuire dismissed similar lawsuits by the National Council of American-Soviet Friendship and the International Workers Order . : 72 

In August 1949, the Court of Appeals for the District of Columbia Circuit ruled against the Anti-Fascists. Circuit Judge James McPherson Proctor , joined by Judge Bennett Champ Clark , affirmed the district court, while held that the Anti-Fascists had not been injured by being included on the list of subversives. In a lengthy dissent, Circuit Judge Henry White Edgerton wrote that the listing was "contrary to fact, unauthorized and unconstitutional." : 73  The D.C. Circuit likewise rejected appeals by the other two organizations. : 73 

Supreme Court

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Oral argument and consideration

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In May 1950, a divided Supreme Court upheld the contempt convictions of the anti-fascists' leadership.

The Supreme Court then granted the listed subversive organizations' petitions for writs of certiorari . Even after review had been granted, the Justices ignored arguments from their clerks to avoid hearing the case on the basis of the newly passed McCarran Internal Security Act . : 78 

Oral arguments were heard on October 11, 1950, where O. John Rogge appeared for the Anti-Fascists, David Rein appeared for the Soviet Friendship Council, Allan R. Rosenberg appeared for the IWO, and Solicitor General Philip Perlman appeared for the government. : 76  Justice Tom C. Clark , who had initiated the list of subversives when he was the Attorney General, recused himself from the case. : 76 

The Court unusually did not vote on the case at its next conference, and at the following conference, it deadlocked 4-4. : 79  After Justice Robert H. Jackson was persuaded to switch his vote, Justice Harold Hitz Burton submitted a draft opinion in favor of the anti-fascists on November 20. : 79  However, Justice Jackson's intense personal dislike of Justice William O. Douglas made him uncomfortable joining the majority and led him to complete an uncirculated draft concurrence in which he attacked Douglas's criticism of the government because it "denounced as ‘totalitarians’—by one how never has been able to see totalitarianism in any Communist Case before this Court." : 80–81  Justice Stanley Forman Reed delayed completing his dissent while the majority Justices were airing their dif

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